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Some Arizona Republicans against early voting

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Victor Calderón/KAWC
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By Howard Fischer
Capitol Media Services

PHOENIX -- The state Republican Party is trying again to end the right of most Arizonans to vote from the comfort of their own kitchen.

At a hearing Wednesday, Alexander Kolodin told the state Court of Appeals that the Arizona Constitution requires that all voting be done in a way to protect secrecy.

Only thing is, he said, there is no way to ensure that people who have early ballots they can fill out anywhere have not sold their votes to someone else or been intimidated. The only way to do that, Kolodin said, is to have votes cast at an official polling place where government officials can watch to ensure that no one else is interfering as people fill out their ballots and drop them in tabulation machines or boxes.

But two appellate judges questioned whether outlawing voting by mail is really necessary to protect secrecy.

And Andy Gaona representing Secretary of State Katie Hobbs pointed out to the judges that there already are laws on the books making vote buying and voter intimidation a crime. And those statutes, he said, fulfill the constitutional requirement for secrecy.

"That's how governments work,'' Gaona said. "The way that we regulate behavior and preserve secrecy is by enacting statutes that protect it.''

Kolodin, however, told the court those statutes are ineffective and don't provide the protections that the framers of the Arizona Constitution wanted.

"There is virtually no way to detect vote buying and coercion after the fact,'' he said.

Arizona has allowed some form of early voting for more than a century, encompassing everyone from those in the military and those not in the county on Election Day to people who are infirm or at least 65 years old.

Republicans are not challenging those statutes. Instead, what the party wants repealed are laws that have been on the books since 1991 that permit anyone to request and receive an early ballot.

Voiding the law would do more than affect the vast majority of Arizonans who like the convenience of voting by mail. There also are political implications.

In the 2020 president race in Arizona, Republican Donald Trump outpolled Democrat Joe Biden by nearly 124,000 votes among those who went to the polls. But Biden gained almost 139,000 more votes among early voters than Trump.

And just this year, unsuccessful GOP gubernatorial hopeful Kari Lake had 190,000 vote lead over Hobbs among those voting at polling places. But Hobbs made that up -- and more -- among those casting early ballots.

During Wednesday's arguments, Kolodin did not address the popularity of the practice or how it might affect voter turnout. Instead, he told the judges they needed to focus on the fact that it's virtually impossible to catch someone, after the fact, whose early vote was voluntarily sold or whose decisions were affected and coerced by someone watching over a shoulder, even a spouse.

More to the point, Kolodin said the court needs to acknowledge a provision in the state constitution, dating back to when Arizona became a state, which says "secrecy in voting shall be preserved.'' And what what means, he said, is ensuring there is a "protected zone around the voter.''

But appellate judge David Gass said there's a flaw in the argument.

He pointed out that Arizona law specifically allows a voter to get help from anyone they want in filling out their ballots.

"And that involves a second person providing assistance, whether that's a family member or even somebody who's a member of the polling board,'' Gass said, meaning an election worker. He said what Kolodin is arguing would preclude even that.

Judge Cynthia Bailey said she also was troubled by how Kolodin was trying to draw the line in a way that would leave those laws and practices intact -- and legal -- while voiding the ability of others to exercise the same right to fill out their ballot and vote remotely from home.

"You're saying the zone can't be violated or the constitution is violated,'' she asked. "So help me understand why my kitchen is different from a place with walls up but someone standing in the booth with me.''

It's not just people getting help filling out the ballot where the law does not require absolute secrecy. The judges pointed out that the GOP is not challenging, like someone 65 or older being able to get an early ballot and fill it out at home, or members of the military who are deployed elsewhere being able to vote by mail.

Gaona told the court that the Republican Party's arguments of a constitutional violation fall short.

He said the legislature in 1991 was free to expand the laws to provide no-excuse early voting. And Gaona said while the constitution requires "secrecy in voting,'' that statute remains legal because it "protects secrecy to the extent that it can.''

What Kolodin and the GOP are seeking, Gaona said, really is a change in policy, something they should be asking the legislature to address rather than trying to get the courts to void it.

In fact, he told the judges that Kolodin will be in the position to do just that.

He won his race this year to be a member of the legislature. And Kolodin has been appointed the vice chair of the House Committee on Municipal Oversight and Elections.

Not everyone in the Republican Party is interested in killing early voting.

Gov. Doug Ducey told Capitol Media Services on Wednesday he uses an early ballot, though he drops it off at a polling place on Election Day. The Republican governor said his party should spend more time getting supporters to use those early ballots to vote for their candidates rather than trying to get courts to outlaw the very popular process that is used by close to 90 percent of all voters.

He isn't the only one who believes that killing voting by mail is not a good idea.

Legislation approved by the Senate Government Committee in March would have accomplished the same thing, along with barring the use of machines to tally votes. But Senate President Karen Fann, R-Prescott, refused to advance the measure, at least in part amid concerns about forcing individuals to stand in line to vote, especially during the August primary.

Kolodin had to take his case to the appellate court because Mohave County Superior Court Judge Lee Jantzen in June rejected similar claims. Jantzen said that 1991 law furthers the goals of promiting voting.

The judges did not indicate when they will rule.